Why, asks Boise’s fire chief, can we buy illegal fireworks when we can’t use them?
Confused about what fireworks you can set off next week to celebrate American independence? A lot of people are after new advice from the Idaho Attorney General’s Office about aerial fireworks — you know, stuff like Roman candles and mortars that you can buy in some shops but aren’t really supposed to set off in this state.
The office’s reading of state law contradicts the commonly understood status quo: that aerial fireworks may be sold within Idaho but not used here.
Here’s where things stand.
Q: What exactly is an attorney general’s opinion?
An opinion issued by the state attorney general is just that — the AG’s thoughts on how state law applies to a certain topic. It’s like a legal opinion from any other attorney, albeit one expressly versed in Idaho code.
As the lawyer for the state and state entities, the AG is required to offer analysis to public officials (in this case, Idaho House Minority Leader Mat Erpelding) and government agencies should they have a question about the law as it relates to their job. Often, lawmakers ask for the office’s thoughts on certain bills during Idaho’s legislative sessions. This past winter, the AG was asked to weigh in on whose job it is to clear snow off sidewalks in Boise, for instance.
What an AG’s opinion is not? A means of lawmaking or changing current state law.
Q: So has the law changed?
In short, no.
The analysis from Paul Panther, chief of the AG’s criminal law division, came at the request of Erpelding, who last session sponsored a measure that would have banned the sale of aerial fireworks in the state. The measure died on a 9-6 vote in the House State Affairs Committee in February. Aerial fireworks, Panther wrote, should be purchased only by people with a permit to put on a formal fireworks display, such as the one planned next week at Expo Idaho. Retailers may not buy or resell them, he wrote.
The AG’s office does not enforce Idaho’s fireworks laws. That is left up to county sheriffs, police and fire departments, and prosecutors.
So the opinion does not by itself ban sales of aerial fireworks. It’s now up to how local agencies choose to interpret and use Panther’s advice. Any enforcement actions may lead to court challenges that could help settle the law.
“Some law enforcement agencies may agree with the analysis and change their enforcement policies. Others may ignore it,” Attorney General Lawrence Wasden said in a written statement issued late Wednesday afternoon. “I encourage these entities to review it and consult with their respective attorneys on how they should proceed.”
Q: Why does it matter?
Proponents of such a sales ban point to the damage done by aerial fireworks — particularly, wildfires and fires within cities. Last year’s destructive Table Rock Fire was started by a Roman candle. Aerial fireworks remain popular, however, and opponents also say the state is infringing on private business rights.
Q: When is a firework “aerial”?
Well, there’s the obvious: When it’s meant to blast off the ground. But technically, this means when it doesn’t meet the definition of “nonaerial common fireworks” as specified in Idaho law. According to code, nonaerial fireworks include “ground spinners, fountains, sparklers, smoke devices or snakes designed to remain on or near the ground.” They can’t travel outside a 15-foot diameter, or create sparks or other burning materials that land outside a 20-foot diameter or above a height of 20 feet. These are the kinds of fireworks generally found at most fireworks stands.
Bottle rockets and Roman candles are examples of aerial fireworks. Firecrackers are also not considered common fireworks.
Q: May I still buy aerial fireworks?
For the moment, yes, probably.
The timing of the opinion’s publicity — just a week before July 4, and well into the selling season — leaves most sellers and agencies examining it with caution. On Tuesday, Boise Fire Department Chief Dennis Doan said his department would start with an education campaign. That’s the same tack that some Canyon County officials are using, too.
Andy Cater, fire marshal for the city of Caldwell, said the Caldwell Fire Department is not currently asking retailers to remove the items from their shelves, “but that could change.” He said he knows of seven or eight fireworks stands in his jurisdiction alone that sell aerial fireworks.
The Canyon County Sheriff’s Office said Wednesday that it’s in the process of reviewing Panther’s letter with its legal counsel. In the interim, the office doesn’t plan on having deputies cite sellers of aerial fireworks in that county.
The Ada County Sheriff’s Office is also reviewing the opinion. As of Tuesday, it wasn’t sure whether the AG’s conclusions were enforceable or whether display permits are necessary for private individuals who want to buy aerial fireworks.
Fat City Fireworks, one of the best-known year-round sellers in Southwest Idaho, sits right off of Interstate 84 in western Elmore County. Calls to that county’s law enforcement about its reaction have not been returned this week.
Q: I’ve bought one. Where may I use it?
Not anywhere in this state — it’s a misdemeanor to light them off in Idaho. But plenty of people do anyway.
Q: How have retailers responded?
Managers at Fat City Fireworks and Rocky Mountain Fur & Fireworks, two year-round sellers in Southwest Idaho, said Tuesday that they were consulting attorneys about the legality of the aerial fireworks they sell. Cater said stand operators in his jurisdiction were doing the same.
Jake Smith, manager at Rocky Mountain, said Tuesday that the items were still on his shelves.
Q: Let’s go back to the source. What did lawmakers intend?
Idaho’s fireworks laws received their last significant overhaul in 1997, after an Idaho Supreme Court ruling that threw out a Canyon County attempt to regulate retail sale of fireworks. The high court decided in 1993 that only the state had the right, under previous law, to perform that regulation. The new legislation also gave cities, counties and fire districts such authority.
Records stored at the Legislative Services Office library do not detail the discussions lawmakers had about the changes. House and Senate records mention in broad terms how the measure would provide oversight of fireworks sales and use.
Former Rep. Hod Pomeroy, R-Boise, served in the Idaho House for 14 years before retiring after the turn of the century. He said 20 years later he does not recall the discussions over the 1997 law. He said, however, that he thinks retail sale of aerial fireworks should be banned.
“That should be changed, for sure. These fireworks have been causing fires,” Pomeroy said. “Let’s hope the Legislature can do something about it.”
State Treasurer Ron Crane is a former legislator who in 1997 was listed as the bill’s contact as it traveled the House and chaired the House State Affairs Committee, which heard debate on it. He declined this week to talk about the issue.
Q: Which poses more fire risk in the Treasure Valley — lightning or fireworks?
When it comes to fires that actually damage people’s property, authorities say fireworks are worse.
The Boise Fire Department last year tallied 17 fires caused by fireworks during the July 4 holiday season, with two involving structures. Nampa investigators pointed at fireworks for a blaze that destroyed a home near Lake Lowell, and they were blamed for a grass fire near Middleton that torched around 20 acres and damaged a building, those agencies told the Statesman last year.
“Fireworks cause a lot of damage,” said Caldwell’s Cater. “In our area, they’re certainly the No. 1 (fire risk).”
Around the Fourth of July, he said, firefighters are constantly out on calls related to fireworks. “It’s a war zone, and the firefighters are really working more than they should,” he said.